IN THE HIGH COURT OF THE REPUBLIC OF SINGAPORE
[2016] SGHCR 7
High Court Suit No 1092 of 2015
High Court Summons No 1030 of 2016
Between
David Ian Andrew Storey
… Plaintiff
And
(1) Planet Arkadia Pte Ltd
(2) Dobson David Michael
(3) Peter Lawrence Dobson
… Defendants
GROUNDS OF DECISION
[Civil Procedure] — [Service] — [Substituted service] — [Social media]
[Civil Procedure] — [Service] — [Substituted service] — [Instant messaging]
This judgment is subject to final editorial corrections approved by the
court and/or redaction pursuant to the publisher’s duty in compliance
with the law, for publication in LawNet and/or the Singapore Law
Reports.
Storey, David Ian Andrew
v
Planet Arkadia Pte Ltd and others
[2016] SGHCR 7
High Court — Suit No 1092 of 2015 (Summons No 1030 of 2016)
Zhuang WenXiong AR
24 March 2016
23 May 2016
Zhuang WenXiong AR:
1
I granted an application for substituted service through email, Skype,
Facebook and an internet message board. There does not appear to be any
local authority on service through the latter three modes, and I therefore give
detailed grounds for my decision.
2
The dispute centres on a virtual planet, Planet Arcadia, within a
massively multiplayer online game, the Entropia Universe. The plaintiff,
David Ian Andrew Storey, is a professional online gamer and freelance
software developer. The first defendant, Planet Arkadia Pte Ltd, is a Singapore
company in the business of developing computer games. The second
defendant, Dobson David Michael, is the managing director of the first
defendant. The third defendant, Peter Laurence Dobson, is a director of the
first defendant. The plaintiff alleges that he is the copyright holder, either
solely or jointly, of various literary and artistic works, and that these works
Storey, David Ian Andrew v Planet Arkadia Pte Ltd
[2016] SGHCR 7
were used both promotionally and in-game without his permission. The
plaintiff also pleads that there was a breach of a contract for delivery up of ingame land.
3
The plaintiff obtained leave to serve the writ ex juris but was not able
to serve the second defendant personally in Australia. The plaintiff thereafter
took out this summons for substituted service.
4
The controlling provision is O 62 r 5 of the Rules of Court (Cap 322, R
5, 2014 Rev Ed); in particular, O 62 rr 5(3) and 5(4) state that
(3) Substituted service of a document, in relation to which an
order is made under this Rule, is effected by taking such steps
as the Court may direct to bring the document to the notice of
the person to be served.
(4) For the purposes of paragraph (3), the steps which the
Court may direct to be taken for substituted service of a
document to be effected include the use of such electronic
means (including electronic mail or Internet transmission) as
the Court may specify.
5
I will not deal at length with substituted service by email. This mode is
uncontroversial: electronic mail is specifically mentioned in O 62 r 5(4), while
para 33(6) of the Supreme Court Practice Directions states that
If substituted service is by electronic mail, it has to be shown
that the electronic mail account to which the document will be
sent belongs to the person to be served and that it is currently
active.
6
I turn to substituted service through Skype, Facebook and internet
message boards. I allowed service through the mentioned modes for five
reasons.
7
Firstly the language of O 62 r 5 is wide enough to encompass service
through Skype, Facebook and internet message boards. O 62 r 5(4) refers to
2
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[2016] SGHCR 7
service being effected through the use of such electronic means as the Court
may specify. The use of “including” indicates that electronic mail and internet
transmission are not meant to be exhaustive examples of service by electronic
means. To be technically precise, O 62 r 5(4) utilises an extensional definition,
but not an enumerative definition.
8
Secondly O 62 r 5(4) was only introduced in 2011 by the Rules of
Court (Amendment No 4) Rules of Court 2011 (S 513/2011). The Rules
Committee cannot foretell exactly which electronic platforms would be in
vogue. Anecdotally speaking, users that were using MSN Messenger and
Friendster in the past would today be using Skype and Facebook. It made
eminent sense for the Rules Committee to merely state that substituted service
could be effected electronically, but without descending into the details as to
which platforms or applications were permissible and which were not —
details which would be left to the court of the day.
9
Thirdly the impracticability of personal service is a prerequisite for
substituted service; and flowing from this the proposed method of service
must “in all reasonable probability, if not certainty, be effective to bring
knowledge of the writ… to the defendant” (Porter v Freudenberg [1915] 1 KB
857 at 889). This is today reflected in O 62 r 5(3), and the principle behind the
mentioned rule is that “the steps directed should bring the document to the
notice of the person to be served” (Serafica Rogelio T and others v
Transocean Offshore Ventures Ltd at [14]). Other electronic means of service
could be more effective than email at bringing a document to the notice of the
person to be served. For instance, Amanda Lenhart et al, “Teens, Technology
& Friendships” Pew Research Centre, August 2015 found that 88% of the
teenagers surveyed texted their friends; 79% used instant messaging; 72%
used social media while only 64% emailed their friends. If the cornerstone of
3
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[2016] SGHCR 7
substituted service is efficacy at bringing notice then a court must be open to
substituted service through electronic means other than email.
10
Fourthly foreign case law has allowed substituted service through
electronic means other than email. The following jurisdictions have allowed
substituted service by Facebook: Australia (MKM Capital Pty Ltd v Corbo &
Poyser (Supreme Court (ACT), 12 December 2008 (unreported)); Canada
(Burke v John Doe 2013 BCSC 964); England (AKO Capital LLP v TFS
Derivatives, February 2012 (unreported)); New Zealand (Axe Market Gardens
v Axe (High Court (New Zealand), 16 March 2009, CIV: 2008-845-2676); and
South Africa (CMC Woodworking Machinery (Pty) Ltd v Pieter Odendall
Kitchens [2012] ZAKZDHC 44).
11
Fifthly the Supreme Court of Singapore issued a consultation paper
entitled “Use and Impact of Social Media in Litigation” (August 2010) which
concluded that substituted service is “the most appropriate manner of engaging
social media” (at para 3.2) and “there is no reason why we should not consider
[substituted service by social media] since it is permissible under our existing
laws” (at para 3.13).
12
I add that I construe electronic means to include WhatsApp and other
smart phone messaging platforms linked to mobile phone numbers. WhatsApp
was recently updated and can now be used to send PDF attachments (see eg,
“WhatsApp update includes easier photo sharing, PDF support, new
backgrounds and more”, http://www.independent.co.uk/life-style/gadgets-andtech/news/whatsapp-new-update-ios-android-photo-sharing-pdf-changebackground-a6924821.html, accessed on 17 May 2016).
4
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13
[2016] SGHCR 7
The main counterargument against allowing substituted service
through electronic means other than email is the fear that such means may not
be effective at bringing notice to the person to be served. But this fear should
not be overblown. The only completely certain way of bringing notice is
actual physical service. The law dispenses with physical service and allows
substituted service when it would be impracticable to do so, but this is a tradeoff and substituted service carries the risk that a document will not actually be
brought to the notice of the person to be served. This is true for conventional
methods. Posting on the front door may not be effective because an owner is
not habitually resident at that particular property; or he has moved out in the
interim; or a mischievous neighbour has detached the notice, and so on.
Advertising in a national newspaper may not be effective because the person
to be served is not in the habit of reading that particular newspaper; even if he
does, he may not read the notice section of that newspaper.
14
The risk that electronic means of substituted service will not be
effective at bringing notice can be curtailed by a court imposing the following
requirements:
(a)
Ordering electronic service to be accompanied by either posting
on the front door or AR registered post. The mentioned two methods
should only be dispensed with if the address of the person to be served
is attested to be unknown or if there is proof that the person no longer
owns or is no longer resident at a known address;
(b)
Proof that the electronic platform in question is used by the
person to be served:
(i)
For email, instant messaging, internet message boards,
or smart phone messaging platforms, proof of a message
5
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[2016] SGHCR 7
whereby the user has explicitly self-identified or signed off as
the person to be served; or a message that shows, in the context
of the dispute, that the user is the person to be served.
(ii)
For social media platforms, the profile name and profile
picture (or other posted pictures) should match the person to be
served, and if the parties have met the profile picture (or other
posted pictures) should be attested to match.
(c)
Proof that the electronic platform in question was recently used
by the person to be served:
(i)
For email, instant messaging, internet message boards,
or smart phone messaging platforms, proof that a message has
been sent within a reasonable timeframe from the date of
service; or for instant messaging, internet message boards or
smart phone messaging platforms, proof that the user was last
seen online within a reasonable timeframe.
(ii)
For social media platforms, proof that there has been
activity within a reasonable timeframe; this can entail the
sharing of photos, the posting of publically-accessible
messages, or the sending of private messages, and so on.
15
Finally I reiterate the proposition that substituted service cannot be
used to circumvent O 11 of the Rules of Court. If a putative defendant is
outside of the jurisdiction when a writ is issued, substituted service should not
be ordered, and if so ordered service is liable to be set aside (see eg, Consistel
Pte Ltd v Farooq Nasir [2009] 3 SLR(R) 665 especially at [31]–[34]). If a
putative defendant is outside the jurisdiction, the plaintiff should first apply for
leave to serve the writ ex juris, and only apply for substituted service
6
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[2016] SGHCR 7
thereafter if personal service is impracticable (O 11 r 3(1) read with O 62 r 5;
Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss
Intermoda Transportasi TBK [2015] 4 SLR 625 (“Humpuss”) at [59(b)]).
Substituted service ex juris may then be challenged by the putative defendant
on the basis that the service contravenes the law of the foreign jurisdiction (O
11 r 3(2); Humpuss at [59(b)]) or that service was effected in a manner not
provided for in the order granting leave for substituted service (Humpuss at
[110(a)].
16
The applicants had earlier successfully applied for service ex juris of
the writ in Australia. They could not serve the writ on the second defendant at
his last known address and a neighbour asked if the process server was
looking for the Colegraves; when quizzed on the second defendant, she said
that she had not heard of him. The applicants also adduced evidence that the
second defendant operated two email accounts, a Skype account which
belonged to “David Dobson” along with a previous conversation pertaining to
Planet Arcadia, a Facebook profile which belonged to “David Dobson” and an
internet message board administrator account “David | Arkadia” on the
domain arkadiaforum.com, which as the name indicates is a forum for the
virtual inhabitants of Planet Arkadia. The profile pictures for the Facebook
and arkadiaforum.com accounts were identical, while the profile picture for
the Skype account was a different picture of the same person. There was also
evidence that the mentioned platforms were recently used; in particular, the
Facebook profile had recent activity: a video was shared and photos were
added; while the Skype and arkadiaforum.com accounts showed that he was
very recently online.
7
Storey, David Ian Andrew v Planet Arkadia Pte Ltd
17
[2016] SGHCR 7
The requirements listed at [14] above were met, and I accordingly
allowed
substituted
service
through
email,
Skype,
Facebook
and
arkadiaforum.com without being accompanied by posting on the front door or
AR registered post. Costs were ordered to be in the cause.
Zhuang WenXiong
Assistant Registrar
Andy Leck Kwang Hee, Cheah Yew Kuin and Ms Faith Lim Yuan
(Wong & Leow LLC) for the plaintiff.
8